Of recent, the Federal Government of Nigeria’s feet have been put to fire on account of alleged breach of rule of law. STEPHEN GBADAMOSI and SUNDAY EJIKE interrogate issues surrounding the question mark on the type of government the country runs. If Nigeria is governed by the constitution and certain laws, how has the Federal Government fared in the area of rule of law and respect for court orders?
SINCE the assumption of the administration of President Muhammadu Buhari, the country has witnessed several cases of outright disregard to the rule of law and disobedience to orders of the courts.
The rule of law is a liberty-centred constitutional concept which stipulates that everything must be done in accordance with the law. It encapsulates such ideals as government according to the law, equality before the law, independence and autonomy of the judiciary among others. The rule of law is fundamental and a paramount prerequisite in a democratic system of government. It is the pillar of constitutional democracy. It serves as a blueprint for designing an ideal legal system. There is almost the absence of the rule of law in military rule. Military rule is marked with autocracy and rule by force. The people are denied civil liberties which conflict with the dictator’s will. The decree is the supreme law of the land in military dispensation.
However, in democratic dispensation, constitutionalism and rule of law are supposed to be sacrosanct. Thus, there is that need to examine the ideal place of rule of law in governance vis-à-vis the Nigerian experience both under democratic and military governance.
Since May 1999 when Nigeria got back on the path of democracy, there has been various challenges facing governance in the country, most of which analysts have always been quick to ascribe to “learning process.”
But 20 years down the line, it has become of grave concern that democracy is yet to assume the colour of what the average Nigerian desires. During those early years of democracy, The Olusegun Obasanjo-led government, at times, came under criticism on account of perceived anti-democratic actions. Many Nigerians would not forget the Federal Government/Lagos State government debacle over withheld N30 billion allocations. The Obasanjo-led Federal Government was on the ticket of the Peoples Democratic Party (PDP), while the then governor of Lagos State, Senator Bola Tinubu was of the Opposition Alliance for Democracy (AD). Obasanjo’s grouse with the then Lagos State Government was reportedly the creation of local council development areas by Tinubu, a development the president saw as going against the dictates of the nation’s constitution.
However, with the intervention of the judiciary, Chief Obasanjo’s position was faulted. The Supreme Court, the highest court in the land, ruled that the Obasanjo-led Federal Government had no power to withhold allocations meant for Lagos State local governments. But Obasanjo refused to heed the call of the court. The development was seen by many as blatant disregard for the rule of law. Yet the retired General was not moved; he stuck to his gun.
Many Nigerians would also not forget the infamous Odi massacre. A group of disgruntled militant boys had murdered some policemen. When soldiers were drafted to the oil-rich Bayelsa community in the wake of the crisis, about nine soldiers were also mowed down by the boys. The development infuriated the president who commanded the community to provide the erring boys or face dire consequences. Convinced that residents of the community were shielding the militants, the government ordered that the community be leveled, an operation that claimed lives of scores of people, mostly the aged, women and children.
Not a few Nigerians considered the action of the Federal Government as being at variance with democratic tenets. There were many other such instances in the eight years of the Obasanjo rule that began the fresh democratic journey.
Thus, the challenges of adherence to the rule of law have their root in the re-emergence of democratic practice in the country. As the journey continued, vestiges of abuse of human rights and disregard for the rule of law persistently appear on the system under successive governments.
When the late Umaru Yar’Adua succeeded Obasanjo in 2007, the foundation of the incoming government appeared to have been shaky from the outset oon account of the rule of law. The election that produced former President Yar’Adu was widely believed to have been flawed. It was reportedly massively rigged, so much so that on assumption of office, the late former president admitted that his election did not follow due process and best practices.
After spending one year in office, the Nigerian correspondent of the London Financial Times newspaper, Mathew Green, on May 15, 2018, during an interview, asked the late Nigerian leader what he thought had been his achievements in the first year since assuming office.
The late Yar’Adua had answered; “I think my greatest achievement is the effort to institute a strict culture of respect for the rule of law in Nigeria. All the problems this country is facing can be traced to a breakdown of respect for the rule of law, regulations, procedures and due process in almost every aspect of our national life.”
But many people believe that the Yar’Adua-led government was not without its own share of disregard for the rule of law, particularly as a result of some actions and inactions of his then Minister of Justice and Attorney-General of the Federation, Mr Mike Aondoakaa, a senior advocate of Nigeria. It was alleged that that office was used to corruptly enrich certain highly placed individuals, especially a former governor in the Niger Delta Area who had a case with the United Kingdom authorities.
In fact, according to some reports, the government failed to ensure access to justice in some instances, a development many said encouraged the people to take the laws into their own hands.
Some people particularly mention the Jos, Plateau State riots of November 28 and 29, 2008 where more than 500 people were reportedly killed. The cause of the riot was said to be the inability of the Independent National Electoral Commission (INEC) to live above board in an election it conducted in Plateau State that year. It took the deployment of soldiers in the area to stop the orgy of killings. The development was to ignite the religion-coloured riots, which analysts attributed to frustrations arising from failure of the legal system to redress the injustices perpetrated during the general elections of 14 and 21 April, 2007 that were also condemned by both national and international observers.
According to a report, “the European Union (EU) Chief Observer of the elections, Max Van Den Berg, had said ‘the EU observers witnessed many examples of fraud, including ballot box stuffing, multiple voting, intimidation of voters, alteration of official result forms, stealing of sensitive polling materials, vote buying and under-age voting.
“INEC’s selectivity and inconsistency with regard to the application and enforcement of electoral laws and court orders were apparent in a number of instances.”
Even when former President Goodluck Jonathan eventually became substantive president and led the country for six years, vestiges of non-adherence to the rule of law persisted and there were allegations that human rights continued to be subjected to violation. The case of the then president of the Court of Appeal, Justice Ayo Salami, almost became a sore point. Leaders of the opposition had accused Jonathan of dabbling into the activities of the National Judicial Council (NJC) over Salami’s case.
However, the current dispensation of the Muhammadu Buhari-led government on the ticket of the All Progressives Congress (APC) appears to have suffered more backlash that all of its predecessors on account of violation of human rights and disregard for the rule of law. After a plethora of complaints against the government within the beginning of its first term about five years ago and now, the government is currently battling with criticisms over its handling of cases against its opponents and critics, particularly that of the convener of #RevolutionNow and publisher of Saharareporters, an online news medium, Omoyele Sowore. Competent courts had ruled on more than two occasions that Sowore should be released on bail, but the government saw things differently. The same is applicable to former National Security Adviser (NSA), Colonel Sambo Dasuki (retd); and leader of the Islamic Movement of Nigeria (IMN), also known as Shi’ite Muslims, Sheik Ibrahim El-Zakyzaky.
At a point recently, an attempt to re-arrest Sowore in a court room, during a process of litigation drew flaks for the Presidency, and generated a lot of hoopla both locally and internationally.
The most visible sore on the human rights rating of the government is the disobedience to pronouncements of various courts. Many people have said that the government chooses which court judgment it likes to obey and which it doesn’t.
The government’s stand remains that ‘national security’ takes preeminence of the rights of any citizen or the rule of law.
According to some law experts, from the beginning, the government has left no one in doubt as to how it intends to relate with the judiciary. It was said that President Buhari detests the manner in which lawyers and citizens exploit the judicial process to escape ‘his venom,’ merely in the name of rule of law. Sign of what to expect came early in the life of the administration when men of the State Security Service (SSS), otherwise known as Department of State Service (DSS), in a nocturnal raid, went after some judges on allegations of corrupt enrichment emanating from the executive.
Despite the huge outcries that tail each action of the government considered to be at variance with democracy, human rights and the rule of law, it does not appear to be ready to change course. This development has thrown up the question of whether or not the country is actually under a democracy.
Therefore, many Nigerians are worried over the present administration which promised to govern the country in such a way that equity, justice and peace shall reign, but latter turned its back on the rule of law and due process.
Again, during the first term of the administration in 2016, for instance, a Federal High Court in Abuja gave an order directing the government to set El-Zakzaky and his wife, Malama Zeenat Ibrahim, free from custody. Till date, the government has refused to release the Shi’ite leader, maintaining that setting El-Zakzaky free would be too dangerous for the Nigerian state.
The Islamic leader and his wife have been in security custody since December 2015, following an altercation between members of the Nigerian Army and the IMN in Zaria, Kaduna State.
Another instance of a clear case of disrespect for the rule law, which has been one major characteristic of the present administration is that of former NSA, Dasuki. He was earlier granted bail by both the High Court of the Federal Capital Territory (FCT) in Maitama, Abuja, where he is facing two separate sets of charges of diversion of funds earmarked for the purchase of arms to fight insurgency in the North-East, and the Federal High Court in Abuja where he is being prosecuted on charges of illegal possession of firearms and money laundering.
Despite local and West African court orders granting Dasuki bail, the government has refused to release him. The Economic Community of West African States (ECOWAS), in 2016, declared the arrest and detention of the former NSA unlawful and arbitrary. But the Attorney-General of the Federation (AGF), Abubakar Malami (SAN), who is the Chief Law Officer, argued that Dasuki’s personal right to regain freedom could be violated for what he referred to as the “larger public good.”
Dasuki was picked up by operatives of the SSS in December 2015 and he is being prosecuted over alleged illegal possession of firearms and diversion of $2.1 billion from the arms deal contract.
Another instance of the government’s disobedience to court orders is the one made by the Federal High Court in Abuja directing the police to unseal the headquarters of a non-governmental organization (NGO), Peace Corps of Nigeria.
Justice Gabriel Kolawole (now justice of the Court of Appeal), in a judgment he delivered on November 9, 2017, awarded the sum of N12.5 million as damages in favour of Peace Corps, its national commandant, Dickson Akor, and other 48 of its members over the unlawful invasion of their headquarters in Abuja on February 28, 2017.
In the judgment delivered in the fundamental human rights enforcement suit filed by the 50 plaintiffs, Justice Kolawole also ordered the police to immediately unseal the group’s headquarters at 57, Iya Abubakar Crescent, Off Alex Ekwueme Way, Opposite Jabi Lake, Jabi, Abuja.
Checks by our correspondents showed that the police have yet to comply with the court order up till now.
On April 11, 2018, for instance, the Rivers State Judicial Complex was invaded by alleged political hoodlums of the ruling APC and nothing is allegedly being done to bring the perpetrators to book, inspire public outcry on the action, which disrupted the proceedings at the complex on that day.
Apart from act of disobedience to court orders by the federal government, its agencies, responsible the security of the country, especially the State Security Services (SSS) have recently formed the habit of invading court rooms, setting fears in the heart of judges and judicial workers.
The most recent, the case of Sowore and Adebayo Bakare, as will be recalled by many, has a trial that was disrupted on December 6 as DSS operatives invaded the courtroom to re-arrest Sowore, less than 24 hours of releasing him from unlawful detention on the order of Justice Ijeoma Ojukwu.
The commotion which paralysed the proceedings of the court started when armed DSS operatives cocked their guns to re-arrest Sowore just after the judge had adjourned his trial till February 11, next year.
As Sowore and Bakare were leaving the courtroom and the judge was already attending to another case, armed DSS operatives who appeared to have laid an ambush for them made to arrest them.
The move forced Sowore and Bakare to turn back to return to the courtroom, but Sowore was quickly held by an operative.
Femi Falana, SAN, counsel to Sowore, described the action of the DSS as a “horrendous, bizarre, and barbaric contempt of court never witnessed under even the most brutal of past dictators that had ever ruled Nigeria.”
He said, “under the military regime, the so-called enemies of the government would not be arrested in the web of the court which is considered a sanctuary.
“The military regimes would always show some respect for the court and would only arrest after the person left the court premises. What we have witnessed today is alien to Nigeria.”
He said at a meeting which Justice Ojukwu called in her chambers with him and the prosecuting counsel, Hassan Liman, SAN, that the judge expressed dismay over the development as she said she was made “to flee her court.”
Sowore, a presidential candidate of the African Action Congress (AAC) in the February 2019 general election and his co-defendant are facing a seven-count charge bordering on conspiracy to commit treasonable felony in breach of Section 516 of the Criminal Code Act, money laundering and cybercrimes amongst others.
They pleaded not guilty to the charge and were granted bail on October 4, in the sum of N100 million and N50 million respectively with two sureties in like sum.
There have been serious condemnations of the action of the DSS by stakeholders in the judiciary, civil society groups and well meaning Nigeria, who accused the agents of the Federal Government of outright disrespect to the rule of law and due process.
The umbrella body of legal practitioners in Nigeria, the NBA, in its reaction, described the DSS as “a notorious agency that enjoys treating judicial process with disdain, particularly as it pertains to obeying orders of courts enforcing the fundamental rights of Nigerians.”
It said it was greatly dismayed at the exhibition of primitivity, thuggery, insane passion for lawlessness, contempt and disrespect for the rule of law by the agents of the DSS while attempting to re-arrest Sowore.
The association, through its National Publicity Secretary, Kunle Edun, described the action of the DSS as disgraceful and crass violation of the hallowed precincts of the law, adding that, “the NBA finds it disgraceful that this ‘court riot’ occasioned by the high handedness and insensitivity of the security operatives interrupted judicial proceedings and made the presiding judge, Justice Ijeoma Ojukwu, to abandon judicial proceedings because of safety concerns.”
It added that the action of the DSS was another in the series of impunity and lawlessness exhibited by the security agency, maintaining that the invasion of the court by the agency of the Federal Government of Nigeria ran contrary to the avowed assurances of President Buhari that he would ensure that the Federal Government and agencies under it obey court orders.
The NBA called for immediate investigation of the “shameful” conduct by the DSS and to ensure that all persons found culpable are duly punished in accordance with the law as well as immediate suspension of the Director-General of the DSS from office.
“We make this demand bearing in mind the fact that the DSS under his leadership has established itself as a brutish and irresponsible agency that derives immense pleasure from violating the fundamental rights of Nigerians and disrespecting court orders,” he said.
The association also called on the National Assembly to review the laws setting up the DSS and, indeed, all security agencies in Nigeria, with a view to repositioning them to be more responsible and responsive to the public.
“That the AGF, being the Chief Law officer of the Federation, should take over all the political cases or cases involving politically exposed persons presently handled by the DSS,” it added.
The National Human Rights Commission (NHRC), in its reaction, reiterated the need for law enforcement officials to be law abiding and not be above the law.
The commission said security officials are paid with tax payers’ money and as, such, there is no room for impunity and utter disregard for the constitution.
“Our democracy is founded on the principle of separation of powers and all citizens, including law enforcement officials, must understand the implications of that and are enjoined to respect the law and the constitution in the enforcement of the law,” it said.
Accordingly, the commission directed all the relevant agencies of government to arrest and try all law enforcement officers involved in the desecration of the hallowed chambers of the Federal High Court, Abuja on Friday December 6th for contempt in the face of the court.
Also in his reaction, a constitutional lawyer, Chief Mike Ozekhome, SAN, said the nation’s secret service danced naked in the streets when it invaded a court of law in an attempt to arrest Sowore who was accused of treasonable felony over his “Revolution Now” mantra.
The senior lawyer said it was a “show of extreme shame, disgust and degeneracy to see a whole secrete security descend to the abysmal gutters of physically invading the hallowed chambers of a court of law to forcefully arrest a suspect, by resorting to crude and unorthodox ‘Hitlerite’ Gestapo tactics in a supposed constitutional democracy.”
Ozekhome said when a government that was supposed to respect and protect institutions, citizens’ rights and rule of law invaded and desecrated the sacred precincts of a court of law, then, the country was in trouble.
“When the same DSS invaded judges’ homes in October, 2016, terrorising the hapless judges and their families, many uninformed Nigerians hailed the misadventure as a sign of fighting of corruption.
“A government that is short on tolerance to criticism, plurality of voices and opposition and which serially violates citizens’ rights and disobeys court orders is a ready recipe for organised disenchantment.
“Our constitutional democracy should be one modelled on the rule of law and not on the rule of the thumb of a benevolent ruler, even if dictatorial, tyrannical, absolutist and fascist,” he said.
Former senator, Shehu Sani, while speaking in Abuja during the week, described the human rights record of the present administration headed by President Buhari as appalling, repugnant and odious.
He said, “we have seen a consistent pattern of erosion of democratic values, disobedience to court order and disrespect to the rule of law under this administration. It is unfortunate that a government that came to office with a lot of promises and expectations in the protection of fundamental human rights and freedom of Nigerians has found itself in this mess,” adding that the present government derives its legitimacy from the constitution and its legitimacy could only be sustained if it respects the constitution of the country.
Sani, therefore, advised President Buhari, whom he said was the greatest beneficiary of human rights struggle in the country, to ensure that he doesn’t leave behind a legacy of human rights violation and desecration of the rule of law.
“Those who are encouraging the violation of human rights, those supporting the persecution of others, those aiding and abating the disrespect of the rule of law today will not be there to defend the legacy of this administration tomorrow,” he added.